youngerIt’s 3:00 am, and I’m laboring to pull together a slide deck for a speech in a few hours.  My hosts want me to cover all the essentials of e-discovery and then take questions. They’ve generously allotted thirty minutes.

So, I’m struggling to come up with a few hard, fast rules to share; rules so plain and true I can preface them “always” and “never.  So far, I’ve got:


  1. Put a written legal hold in place
  2. Make sure the legal hold is clear, personal and practical
  3. Test searches against representative samples of data
  4. Settle on forms of production before collection


  1. Accept IT knows what to do until you’re certain of it
  2. Rely exclusively on custodial hold and collection
  3. Assume that what a vendor asks for is the price you’ll pay
  4. Review until you deduplicate

As I ponder how I’ll fill out my list to ten items, my thoughts drift to another list of commandments from a long ago CLE program.  I’m reminded that any list of “always” and “never” must occasionally yield to those with the expertise and judgment to ignore them.

There are great lessons in life that stick with you.  If you’re very lucky, there are lots of them.  One of mine was listening to the late, great Irving Younger share his Ten Commandments of Cross Examination.  How I envy Judge Younger his singular delivery and gift for storytelling!  If I ran the world, no lawyer would be admitted to the courthouse without affirming he or she had listened to a recording of Younger’s Ten Commandments of Cross-X at least twice.

One of Younger’s commandments held that a lawyer should never permit a witness to repeat direct testimony on cross examination.  He tempered this point with a story about Max Steuer, a bygone trial lawyer with the unenviable task of defending the owners of the Triangle Shirtwaist Factory, whose sweatshop burned in 1911, killing 146 seamstresses trapped inside.  In its sadness and its role as a catalyst for change, the Triangle Shirtwaist fire was the 9-11 of its day.

A witness named Katy told a horrific tale of surviving the conflagration and carnage. All who heard the sad young woman were stunned and angered.  But, on cross examination, Steuer not only had Katy retell her story, he had her tell it again and again.

She did.  Again and again.  Always verbatim, never changing a word.

Steuer’s ear caught something others missed, and by breaking the rule against repeating damaging testimony, Max Steuer brilliantly demonstrated that Katy had been scripted and coached too well.  An offended jury returned an acquittal.

But unless your mastery of e-discovery rivals Max Steuer’s legendary courtroom prowess, the list of always and never items above are worth observing.

Now, how about contributing some of your own “always” and “never” items as comments below?   Thanks.